In the field of study on the margins of law, politics, and philosophy there are a number of phrases that are as iconic as “Great taste! Less filling!” or “Where’s the beef!?” Consider these taglines by Carl Schmitt, Jean-Jacques Rousseau, and Emmanuel Sieyes, respectively
Sovereign is he who decides on the exception.
Since the laws are nothing but authentic acts of the general will, the sovereign can act only when the people are assembled.
The nation is the law itself….No nation has ever been able to decree that the rights inherent in the common will, i.e. in the majority, should pass into the hands of the minority.
All three resonate with both a ring of truth and a kind of majesty that is hard to deny. It is therefore entirely unsurprising that the literature on such matters as constituent and constituted powers, or the relationship between sovereignty and the general will is not just immense but also absolutely fascinating.
An idea that may strike one who is musing about the force of these three proclamations is that they must be understood in a particular way to have much chance of seeming true. It’s quite obvious, e.g., that given the existing arrays of polities in the world today, some may be such that nobody will actually ever decide on what Schmitt calls an “exception”; in fact, there may be places where no exception to the legal status quo will ever even be proffered by anyone. Furthermore, it can’t be doubted that a substantial number of (at least apparent) sovereigns have managed to act in a large variety of ways in spite of the fact that the people there have never been assembled. And, of course, numerous nations have delivered any number of “rights” – whether or not these have been correctly deemed to be “inherent in the common will” – directly into the hands of one or another local oligarchy.
But no such prosaic observations as those will do much in the way of diminishing the power of these canonical pronouncements. I believe that is because there are a couple of other, perhaps not quite so literal, ways of understanding them. First, rather than supposing them to be descriptive of the world of realpolitik, they may be taken as stipulative definitions – suggestions for good ways to understand the terms “sovereign” or “passage of rights.” A second possibility is that these assertions are intended as aspirational. That is, Schmitt might be suggesting that what we should want is that all and only sovereigns be the entities that decide (or have the power to decide) on crucial exceptions. Similarly, perhaps Rousseau simply hoped for commonwealths in which actions of a certain type can only be taken when the people have been assembled in a particular way. And maybe Sieyes was just expressing his firm opposition to minority rule.
Unfortunately, the alternative readings that correspond to the stipulative or aspirational connotations may also produce a variety of interpretations. So, for example, it may be doubted whether it is appropriate for “sovereign” to be understood in the proposed manner, or one may disagree about what powers really ought to be kept from majorities and reserved instead for one or another elite group.
In addition to the various ways in which many of the most important propositions involving “people power” may be taken, there are fine distinctions that political philosophers have wanted to make in this area. For example, in her contribution to the massive new OUP Handbook on Constituent Power, Simone Chambers concedes that “the concepts of constituent power and popular sovereignty are sometimes difficult to distinguish from each other.” After all, she continues, “constituent power is the authority to create or reshape a constitution,” and the latter, whether written or unwritten, provides the foundation for all lawful edicts in any democracy. Thus, since “sovereignty implies a superlative claim to political authority,” where there is popular sovereignty it might seem that the people must occupy the place of the highest political authority, which would seem to make popular sovereignty and constituent power at least nearly synonymous. Nevertheless, Chambers insists that the concepts are clearly distinguishable, for she takes “sovereignty” to imply the power to enact specific policies and so push citizens and things around, while "constituent power” instead implies a “generative or creative power to choose the rules” rather than the capacity to actually enforce any particular program.
Of course, anyone may use these terms as they wish, and it is always wise to try to understand precisely how they have been used by prior well-known writers on these subjects. But perhaps I am not alone in sensing the limited value of all the logic chopping here. For we could just as easily distinguish types of constituent power/sovereignty, noting that some do and some do not involve various executive activities. Obviously, if keeping these connotations strictly separate is clarifying, it might be quite useful to do so, but I’m not sure that goal is reached when “sovereignty” (writ large) is confused with “popular sovereignty” as in this assertion by William Selinger in his contribution to a recent symposium on this subject: “Since Carl Schmitt, constituent power has been increasingly interpreted as no different from sovereignty.” I mean, even if Schmitt was guilty of muddling these matters to a fare-thee-well, I don’t believe he ever suggested that all instances of sovereignty can reasonably be suggested to be based on the desires (or perhaps others would say interests) of the relevant constituents. That is, I don’t think even Schmitt (with all of his fondness for dictatorships) ever explicitly suggested that sovereignty of every kind must always be a matter of constituent power. Consider Rex, who has conquered a new territory and taken control of the people and laws there. Surely, it must be correct to say that Rex is that territory’s new sovereign, but the locals – though it is odd to call a newly subjugated people a constituency – may have no power at all. In this way it seems that all the chopping will sometimes only make matters murkier. When that happens, we readers may also wonder where, exactly, to find the beef?
For my taste, one of the best places to look is Lucia Rubinelli’s Constituent Power: A History, which, to drain these advertising metaphors completely, manages to be both a great read and comfortably filling. I have reviewed her fine book, along with an also important new work by J.H. Snider on U.S. state constitutional referendums, here.
